Telecommuting Arrangement Not Covered Under ADA Due to New Job Description

A federal appellate court has ruled that an employee was not a “qualified individual” under the American with Disabilities Act (ADA) and therefore the employer did not fail to accommodate her disability when a merger led to a change in job description that required relocation and an in-office presence [Bilinsky v. American Airlines, CA7, Dkt. No. 18-3107, 8/9/19].

Kimberly Bilinsky was employed by American Airlines (AA) for over twenty years in various capacities. Since 2007, Bilinsky was employed as a communications specialist in the Flight Service Department. She originally worked in the company headquarters in Dallas, however due to her multiple sclerosis, AA made a telecommuting arrangement and Bilinsky moved to Chicago where the weather would not exacerbate her condition. In 2013, due to a merger, Bilinsky’s department was reorganized and her position now required an in-office presence in Dallas. When negotiations failed, AA terminated Bilinsky who filed suit under the ADA.

The court noted that an employer may not rescind an accommodation due to a lack of convenience and in fact, the ADA requires employers to make “reasonable sacrifices” to employ people with disabilities. However, due to the merger, AA revoked all telecommuting arrangements including Bilinsky’s. AA asserted that the position now required her presence and availability during normal working hours. Bilinsky could not keep normal working hours and often made her own schedule.

While Bilinksy argues she had performed the position successfully for years, AA’s needs had changed and the “essential functions” of the position were different after the merger. The team no longer responded to written inquiries and had moved to a team-centered crisis management model that required face-to-face meetings with team members on short notice. Team members testified the merger resulted in an increased demand for services that only local employees could provide and Bilinsky left a gap that a remote worker could not fill.

The court ruled that Bilinsky was not a “qualified individual” under the ADA and therefore not eligible for ADA protections due to the significant changes in the position under the merger. The court cautioned future ADA litigants that employers are not required to offer telecommuting if productivity is greatly reduced by its use. While it acknowledged that technology has expanded the use of telecommuting, its use should be based on the type of work performed. The court offered as an example that telecommuting may be a reasonable accommodation for a software engineer but not a construction worker.

Employers Should Continue to Use Current Form I-9 After August 31 Expiration Date

The U.S. Citizenship and Immigration Services (USCIS) has advised employers to continue using the current version of Form I-9 (Employment Eligibility Verification) after its expiration date on Aug. 31, 2019 [USCIS website, What’s New, 8/27/19].

Form I-9 must be completed by employers for all newly hired employees to verify their identity and authorization to work in the U.S.

Earlier this year, the USCIS held two comment periods for the proposed extension of the current version of Form I-9. A spokesperson for the USCIS indicated that it is planning to renew the current version without change.

On Aug. 27, 2019, the USCIS announced that the current version of Form I-9 should continue to be used after its Aug. 31, 2019 expiration date. The USCIS added that it will provide further information about the new version of Form I-9 as it becomes available.